Taylor's Trusts; Taylor v Blake

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 07 July 1911
• Court: Chancery Division (Ireland)
• Docket Number: (1911. No. 449.)
• Date: 07 July 1911

Taylor's Trusts;

Taylor

and

Blake.

Wylie, J., for M. R.

(1911. No. 449.)

CASES

DETERMINITD BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND.

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1912.

Will — Construction — Life interest to daughter and to surviving husband — Remainder to “issue” upon death or re-marriage of husband — “Issue,” meaning of — Word of purchase or of limitation — Shelley's Case, Rule in — Perpetuities, Rule against.

By his will, dated 31st October, 1883, a testator appointed trustees and gave to them his property of every kind with powers of management, and provided as follows:—“And as to the rest, residue, and remainder of my property I direct the income thereof to be paid to and amongst my four children (naming them) in equal shares during their natural lives, and after the decease of any one or more of them leaving a husband or wife him or her surviving, then the share of such deceased child or children to be in trust for such husband or wife him or her surviving, for the term of each of their natural lives or until they re-marry, and after their respective deaths or re-marriage then to the issue (if any) of such deceased child, and in case of no such issue to go to or amongst my surviving children or child, or their, his, or her issue; and I further direct that all the benefits conferred by this my will shall be had and enjoyed without power of anticipation by the persons or person for the time being otherwise entitled for their lives or life as aforesaid.”

The testator died 22nd August, 1889. One of the testator's children was married and had children living at the date of the will. The other three children were married after the date of the will. The bulk of the property subject to the trusts consisted of chattels real, and there was also some real estate.

Held: (1) that in the devise “to the issue (if any) of such deceased child” the word “issue” was a word of purchase and not of limitation, both as regards the real and personal estate of testator. (2) That the word “issue” included all descendants, limited in each case to such of them as were living at the time when the gift in each case took effect. (3) That, as the class constituting “issue” might not be ascertainable within legal limits, the gift to such issue, as well as the gift over in default of issue, was void as infringing the rule against perpetuities.

ORIGINATING SUMMONS.

By his will, dated 31st October, 1883, Thomas Taylor appointed trustees, and gave to them his property of every kind, with powers of management, and after certain other provisions, he provided as follows:—“And as to the rest, residue, and remainder of my property, I direct the income thereof to be paid to and amongst my four children, Sarah Grandison, Emma, Henry, and Elizabeth Balderson Taylor, in equal shares, during their natural lives; and, after the decease of any one or more of them, leaving a husband or wife him or her surviving, then the share of such deceased child or children to be in trust for such husband or wife, him or her surviving, for the term of each of their natural lives, or until they re-marry, and after their respective deaths or re-marriage then to the issue (if any) of such deceased child, and in case of no such issue to go to or amongst my surviving children or child, or their, his, or her issue; and I further direct that all the benefits conferred by this my will shall be had and enjoyed without power of anticipation by the persons or person for the time being otherwise entitled for their lives or life as aforesaid.”

The testator died 22nd August, 1889, and probate of his will was granted on 4th October of the same year.

He left four children surviving him: the plaintiff, the Reverend Henry Taylor; the defendant Mrs. Allen; Mrs. Macrory (widow), and Mrs. Grandison. Mrs. Grandison was married, and had children living at the date of the testator's will. The Rev. Henry Taylor, Mrs. Allen, and Mrs. Macrory were married after the date of the will. Mrs. Grandison died intestate on 7th June, 1901, leaving her husband surviving her, and he died without having re-married on 16th January, 1911. There was issue of the marriage five children, of whom two pre-deceased the testator. Of the three other children, one, Edith, was born in 1868, and married a Mr. Blake, having issue one child, born in 1906. The second surviving daughter, Olive, was born in 1877, and married the Reverend Dr. Kidd, and had two children, one of whom was the defendant, Basil Kidd. The third surviving daughter, Madeline, was born in 1880, and had married Mr. Charles Bewley, but had no issue. The Rev. Henry Taylor, Mrs. Allen, and Mrs. Macrory had children who were living.

The property, subject to the trusts of the will, consisted of (1) leasehold lands and premises in the City of Dublin, held under lease for a term of 250 years from the year 1874, and producing a net annual rental of about £900 a year; and (2) freehold premises in the City of Dublin, held under fee-farm grant at the yearly rent of £13 12s. 7d., and yielding a net annual rent of about £55.

The trustees of the will issued an originating summons, asking for the determination of the following questions and matters:—

(1) Is the word “issue” in the residuary gift in the said will, “to the issue (if any) of such deceased child,” to be interpreted as a word of limitation or a word of purchase—(a) with respect to the testator's real estate; (b) with respect to his chattel real estate?

(2) If the word “issue” in the said gift is to be construed as a word of purchase, are the persons to take under the said gift restricted to any, and, if so, to what class of issue?

(3) Does the said gift fail to any, and, if so, to what extent by reason of the same infringing the rule against perpetuities?

(4) If the Court shall be of opinion that the said gift fails to any extent, whether the said gift, or any or what part thereof so failing, is undisposed of by the said will?

R W. Lucas, for the trustees of the will (one of whom was also the heir-at-law of the testator), submitted the questions for the decision of the Court.

Oulton, K.C., for the defendant, Basil Kidd, an infant, one of the great-grandchildren of the testator.

First, the word “issue” is a word of purchase and not of limitation. This is clear as far as the personalty is concerned. A gift of personalty to A for life, and then to his issue, confers a life estate only on the first taker, and an absolute estate on the issue, and the rule in Shelley'sCase (1) has no application: Knight v. Ellis (2); Ex parte Wynch (3); Foster v. Wybrants (4); and this construction would not be altered by the fact that realty was granted in the same clause so as to confer an estate tail in the latter: Herrick v. Franklin (5). It is...